STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MYRA C. MCKINNEY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1575

)

COLONIAL INSURANCE COMPANY )

OF CALIFORNIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Myra McKinney, pro se

1823 Mayfair Road

Tallahassee, Florida 32303

For Respondent: Lucinda A. Reynolds, Esquire

McCutchan, Druen, Maynard, Rath & Dietrich One Nationwide Plaza

Columbus, Ohio 43216 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether Petitioner, Myra McKinney, was discriminated against in her employment by being terminated, allegedly on account of her race, which is black.

PRELIMINARY STATEMENT

This cause arose upon the filing of a complaint with the Florida Commission on Human Relations (Commission) by Myra McKinney. In the complaint she alleged that she had been terminated from her position as processing manager for the Respondent on account of her race, which is black. She has also alleged that she was terminated wrongfully and not of sheer necessity. The Commission conducted an investigation and a Notice of Determination of No Cause was issued on February 12, 1993. In due course a petition for relief was filed on March 15, 1993, and the cause was transmitted to the Division of Administrative Hearings and ultimately the undersigned Hearing Officer.

The cause came on for hearing as noticed. The Petitioner presented seven exhibits which were admitted into evidence and eight witnesses. The Respondent presented four exhibits which were admitted into evidence. Additionally,

Respondent's case-in-chief was presented, by agreement of the parties, through its cross-examination of the witnesses called in the Petitioner's case-in-chief. Additionally, the Petitioner testified in rebuttal.

Upon conclusion of the proceedings, the parties availed themselves of the right to submit proposed findings of fact and conclusions of law in the form of proposed recommended orders. Those proposed findings of fact have been considered herein and are specifically ruled upon again in the appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, Myra McKinney, is a black female. The Respondent is an insurance company which conducts operations in Florida, as pertinent hereto, consisting of the receipt of insurance policy applications with attendant premium payments, the recording of such policy applications, and other administrative procedures and operations necessary to act on the applications and receipt of premium monies by underwriting the risks involved by insurance policies issued by the company. The Respondent is an employer in the State of Florida for the purposes of Chapter 760, Florida Statutes.

   
   

2. The Petitioner was employed by Respondent at times pertinent hereto and from 1981 through June 2, 1992. When she was terminated she held the position of "processing manager." This position involved presiding over the department as supervisor, with the responsibility and function of receiving insurance policy applications and related binder and/or premium monies and properly accounting for them in the process leading up to the Respondent company issuing insurance policy contracts. The Petitioner was the supervisor of personnel charged with the receipt of and proper accounting for such applications and premium monies.

   
   

3. On or about June 11, 1992, after being terminated by the Respondent on June 2, 1992, the Petitioner filed a charge of racial discrimination related to her termination with the Florida Commission on Human Relations (Commission). An investigation was conducted by the Commission which ultimately resulted in the determination of "no cause."

   
   

4. The Petitioner had been placed on work probation on May 11, 1992, because of poor work performance. The terms of her probation status specified that her work performance would have to be reviewed in 30 days and that if objectives were not met she would be terminated. The Petitioner had been asked by her manager or supervisor to provide him with reports on missing work (lost or misplaced applications), as well as a plan to correct the processing deficiencies leading to this problem and to eliminate the backlog of unprocessed applications. The Petitioner failed to provide the requested response and report until the supervisor had to make a second request of her.

   
   

5. Witness John Burkhalter, the Petitioner's most recent supervisor, as well as witnesses Maria Diaz and Connie Bonner, established that a corporate audit revealed severe deficiencies and discrepancies in the processing department's function, which the Petitioner supervised. Under the Petitioner's management the processing department had fallen into severe disarray with a serious backlog of unprocessed work, a loss of control by Ms. McKinney over the processing of the work, particularly the problem of lost or misplaced insurance policy applications and related premium or binder checks. There were organizational and work-flow management problems, and very poor morale throughout the processing department. Ms. Diaz established that the poor morale

   was directly attributable to the Petitioner's performance because she had poor organizational skills. Numerous meetings were held with no apparent purpose for the meetings and little was accomplished. Meeting agendas between the Petitioner and her subordinates were lacking or rudimentary. The Petitioner had the habit of intimidating employees, being critical of them, and causing the employees to feel reluctant to express ideas and opinions clearly, particularly criticisms of the manner in which the office was operated. Once the Petitioner left employment, the backlog of unprocessed work and the problem of missing or misplaced applications was immediately alleviated, with the office functioning in much better fashion ever since.

   
   

6. Additional missing applications and a box of "backlogged", unprocesed applications were found concealed in the office on the day of the Petitioner's termination, June 2, 1992, during the course of her work probationary period. Mr. Burkhalter established, as the immediate supervisor of the Petitioner and the regional operations officer of the Respondent company, that the Respondent had a progressive discipline policy and termination policy. The corporate policy was followed with regard to the termination of the Petitioner. The Respondent employed progressive discipline when it learned of the severity of the problems in the processing department, imposing a probationary period first, and giving the Petitioner an opportunity to correct the problems, followed by termination for work performance deficiencies when the opportunity to correct those deficiencies was not taken advantage of by the Petitioner.

   
   

7. Ms. McKinney's actual performance in May of 1992 was not consistent with her previous performance evaluations. Her former manager, Mr. McFall, had inflated her performance ratings and given her satisfactory ratings when actually her performance did not justify such. Mr. McFall himself was terminated near the same time as the Petitioner and testified on behalf as concerning purported satisfactory performance but, given the totality of the circumstances surrounding his termination and testimony in support of the Petitioner, is deemed a biased witness against the Respondent. His testimony was colored by his own dispute and history of litigation with the Respondent concerning his employment and termination.

   
   

8. Mr. Burkhalter reviewed the Petitioner's entire personnel file, the deficiencies in her work performance and her lack of any improvement during the work probationary period when the Respondent gave her an opportunity to improve and make corrections. He determined termination was, therefore, the only option. He reviewed such considerations as transferring the Petitioner or demoting her to another position. However, because of the exceedingly poor morale generated in the department largely by the Petitioner's management and supervisory practices, Mr. Burkhalter determined that neither option was in the best interest of the Respondent or Ms. McKinney. He, therefore, terminated Ms. McKinney in compliance with the provisions of the work probation policy of the Respondent. He did not terminate her or otherwise discipline her for any reasons motivated by consideration of her race. In establishing this as fact, his testimony is corroborated by that of Ms. Lynn Jones, a black female employee, who testified that she had never been personally discriminated against by Mr. Burkhalter or Colonial nor had she observed any other black person employed by the Respondent treated in what appeared to her to be a disparate fashion, including the Petitioner.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1991).

   
   

10. Section 760.10, Florida Statutes, makes it unlawful to discriminate against a person on the basis of race, color, religion, sex, national origin, age, handicap, or marital status. Federal case law dealing with Title VII of the Civil Rights Act of 1964, as amended, is applicable in construing Chapter 760, the Florida Human Rights Act, which was patterned after Title VII. See Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (1st DCA 1991).

    
    

11. In McDonnell-Douglas Corporation v. Crane, 411 US 792, 93 S.Ct. 1817,

    36 L.Ed.2d 668 (1973), the United States Supreme Court established an allocation of the burden of production, the requirements for a prima facie case of discrimination and the order for the presentation of proof in Title VII discriminatory treatment cases. Under the McDonnell-Douglas formula, to establish a prima facie case, the applicant must prove (1) membership in a protected group; (2) that the plaintiff was qualified for the position sought;

    (3) that the applicant was not hired for the position sought; and (4) that the position remained open and was ultimately filled by someone from outside the protected group. Establishment of the prima facie case creates a presumption that unlawful discrimination occurred. See Texas Department of Community Affairs v. Burdine, 450 US 248, 354, 101 S.Ct. 1089, 1094 (1981). This presumption places upon the Respondent the burden of producing an explanation to rebut the prima facie case. This has generally been described as articulating a nondiscriminatory version of the action complained of. Burdine, supra. Once the Respondent articulates a nondiscriminatory reason for the employment action taken, the petitioner has an opportunity to demonstrate that the employer's articulated reason is, in fact, a pretext for unlawful discrimination. Thus the McDonnell-Douglas presumption shifts the burden of production to the defendant (Respondent), but the ultimate burden of persuading the trier of fact that intentional discrimination occurred remains at all times with the Petitioner. See Burdine, supra.

    
    

12. Recently the United States Supreme Court revisited the McDonnell- Douglas scheme and the significance of the shifting burden of production relative to the ultimate burden of persuasion in St. Mary Honor Center v. Hicks,

    113 S.Ct. 2742 (1993). In that case the Supreme Court notes that once a defendant in a Title VII discriminatory treatment case has succeeded in carrying its burden of production regarding a legitimate nondiscriminatory reason for the challenged action, the McDonnell-Douglas framework, along with its presumptions and burdens, is not longer relevant. The defendants "production" whether persuasive or not requires the trier of fact to proceed to the ultimate question of whether the plaintiff (Petitioner) has proven that the defendant (Respondent) intentionally discriminated against the Petitioner for the unlawful basis alleged. The employee continues to bear the burden of persuading the trier of fact as to the ultimate fact of discrimination even though the trier of fact may conclude that the employer's proffered reason is unpersuasive or even contrived.

    
    

13. Because the employer has the burden of production and not one of persuasion, which remains with the employee, the employer is not required to persuade the trier of fact that its decision was actually motivated by the reason given, but rather must produce a legitimate, nondiscriminatory articulated reason. If the employer satisfies that burden of production, then

    the fact finder must be persuaded by the employee that that proffered reason was really a pretext for intentional discrimination and that burden may be satisfied by showing directly that a discriminatory reason more likely than not motivated the decision or, indirectly, by showing that the proffered reasons are not worthy of belief. See Department of Corrections v. Chandler, 582 So.2d 1183 (1991 Fla. Appeals).

    
    

14. In this case the Petitioner has not presented direct or indirect evidence of discrimination. She has not presented any comparative instances of disparate treatment and no direct or circumstantial statistical evidence that the Respondent's actions were motivated by race. There is absolutely no evidence in the record which would show that race was a motivation for any action taken in reference to the Petitioner. Although she attempted to raise the issue of wrongful termination, the issue before the Hearing Officer is rather one strictly of racial discrimination as a reason for termination.

    
    

15. In terms of whether the Petitioner established a prima facie case, it must be concluded that the Petitioner has not established that she was qualified to perform the job functions of a processing manager at the time of her termination. Testimony by her own witnesses, as well as that of her immediate supervisor, John Burkhalter, which is accepted, and the notice of work probation and the memos concerning the deficiencies in her work indicates that she was not satisfactorily performing her job as processing manager at the time she was placed on work probation nor at the time of her ultimate termination.

    
    

16. The Petitioner has introduced no evidence of any comparative individual, not of her protected class, who was treated differently than she was. She has not shown that she was terminated under circumstances for which a similarly situated white employee or employees was not terminated. Accordingly, in terms of the question of her establishment of a prima facie case, it is determined that she has not established that she was qualified to perform the job and has not established that she was treated in a disparate fashion when compared to someone not of her protected class. Absent a showing that she was terminated under circumstances for which similarly situated white employee or employees was not terminated, she has failed to prove a prima facie case of race discrimination. See Pouncy v. Prudential Insurance Company, 668 F.2d 795 (5th Cir. 1982).

    
    

17. The Respondent has articulated legitimate nondiscriminatory reasons for her termination in terms of her sub-standard work performance. Direct testimony by the Petitioner's own witnesses show that the morale in the department was very low; that there was a large backlog of work in the department managed by the Petitioner, which was going undone. Further, there was established a loss of control by the Petitioner as manager and supervisor. Severe organizational problems in the way she attempted to manage the department existed. This created a significant deficiency in her interpersonal relationships with her employees with resulting personnel management problems. The Petitioner was placed on work probation as a part of the Respondent's progressive discipline policy. The Petitioner did not meet the terms and objectives set forth in her work probation mandate and pursuant to the terms of that work probation policy and in compliance with it, she was duly terminated.

    
    

18. In the face of the Respondent's articulation (and indeed proof of) a legitimate, non-discriminatory reason for the Petitioner's termination related to her substandard job performance, the Petitioner has failed to prove by a preponderance of the evidence that the proffered reason lacks credibility or that the Respondent's actions were more likely than not motivated by racial

    animus, rather than legitimate business needs. Thus, the Petitioner has failed to meet her burden of proof. The Petitioner's allegations of racial discrimination in her termination have not been established. Absent proof of disparate treatment and that she is qualified for the position from which she was terminated, the Petitioner has additionally failed to carry her burdens of proof and persuasion that the articulated reasons for the termination, which were legitimate business reasons, were pretextual. Reasons based upon a sound business practice, one that demonstratably bears a reasonable relationship to job performance, goes a long way in establishing a legitimate, non- discriminatory reason for the employment action at issue. See Chandler, supra.

    
    

19. In summary, it is concluded that the Petitioner was treated properly within the corporate policy and guidelines concerning discipline and termination. She failed to prove a case of racial discrimination by failing to show the Respondent consciously refused to retain her in employment because of her race or that the Respondent regarded her race as a factor in the decision to terminate. She has failed to establish any comparative employees who are similarly situated, but outside her protected class, who were treated differently than she was. Because the Petitioner has failed to establish a prima facie case in the particulars referenced in the above conclusions of law and because she has failed to establish that the legitimate business reason for her termination articulated by the employer, the Respondent, was in fact pretextual and has failed to establish a direct or indirect discriminatory motive or intent in her termination, the petition must fail.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the evidence of Record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore

RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the subject petition of Myra McKinney in its entirety.

DONE AND ENTERED this 11th day of January, 1994 in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1994.

APPENDIX

Petitioner's Proposed Findings of Fact:

1. Accepted but not in itself materially dispositive of the relevant issues.

2. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter.

3. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter.

4. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter.

5. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter.

6. Rejected as immaterial.

7. Rejected as not in accordance with the totality of the preponderant, credible evidence.

8-9. Accepted, but not dispositive of the material issues presented.

1. Rejected as not in accordance with the preponderant, credible evidence of record.

2. Rejected as not clearly established by the preponderant evidence of record.

3. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

4. Accepted.

5. Rejected as immaterial and subordinate to the Hearing Officer's Findings of Fact on this subject matter.

6. Rejected as not entirely in accord with the preponderant weight of the evidence.

7. Rejected as contrary to the preponderant weight of the credible evidence.

8. Rejected as contrary to the preponderant weight of the credible evidence.

9. Accepted.

10. Rejected as immaterial.

11. Rejected as immaterial.

12. Accepted.

13. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

14. Rejected as immaterial.

15. Rejected as immaterial given the issues in this proceeding.

16. Rejected as immaterial and not in accord with the preponderant weight of the evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter.

17. Rejected as not in accordance with the preponderant weight of the credible evidence.

18. Rejected as immaterial.

19. Rejected as not in accord with the preponderant weight of the credible evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter.

20. Rejected as immaterial under the circumstances presented by the issues in this case.

21. Rejected as immaterial under the circumstances presented by the issues in this case.

22. Rejected as immaterial under the circumstances presented by the issues in this case.

Respondent's Proposed Findings of Fact:

1-14. All accepted, but subordinate to the Hearing Officer's Findings of Fact on the same subject matter to the extent that they differ.

COPIES FURNISHED:

Ms. Myra McKinney 1823 Mayfair Road

Tallahassee, Florida 32303

Lucinda A. Reynolds, Esquire McCutchan, Druen, Maynard,

Rath & Dietrich One Nationwide Plaza Columbus, Ohio 43216

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-001575

Orders for Case No: 93-001575